LAWS(NCD)-1997-1-101

TRANS ASIAN INDUSTRIES Vs. DEEPIKA TRAVELS

Decided On January 08, 1997
TRANS ASIAN INDUSTRIES Appellant
V/S
DEEPIKA TRAVELS Respondents

JUDGEMENT

(1.) Brief facts giving rise to this application are that M/s. Tans Asia Industries Exposition (Pvt.) Ltd. complainant for short, filed a complaint in which opposite party 1 was Deepika Travels, a proprietorship concern of Mrs. Sharda Yadav and Zambian Airlines Corporation. The complaint came up for hearing for 22.3.95. The complainant failed to appear. Counsel for the opposite party Nos.2 and 3 i. e. , Zambian Airlines was present and the complaint was dismissed for default. Later on, an application for its restoration was made. Notice in that application was sent by Registered Post inter-alia to Deepika Travels, respondent No.1. The registered envelope was not received back undelivered, with any report. It was presumed that service had been effected and by order dated 19.9.95 the complaint was restored. Thereafter the complaint was adjourned from time to time and ultimately it was allowed by order dated 13.2.96. The present application by respondent No.1, Deepika Travels, was made on 26.9.96 for setting aside the ex-parte order on the ground that the applicant was never served with the notice in the application for restoration of the complaint. In support of the application, affidavit of the sole proprietor Mrs. Sharda Yadav has been filed. Notice of the application was sent by Registered Post to the complainant. None has appeared. We have, therefore, heard Miss Sarita Gaur, Advocate and have gone through the records.

(2.) The contention of Miss Gaur is that the presumption of service is a rebuttable presumption and the same stands rebutted in the present case in view of the categorical affidavit of the sole proprietor of Deepika Travels. In the absence of notice no order prejudicial to the applicant could be passed. She further submits that admittedly the principal amount had been paid by Zambian Airlines and the surviving claim for interest if any, was also the sole liability of the said airlines and these facts were not brought to the notice of the Commission. We find force in the above contention and accordingly, allow the application and set aside the ex-parte order dated 13.2.96. As a result, the main complaint stands dismissed in pursuance of the order dated 22.3.95. A copy of this order be communicated to the complainant as well as the other parties in this application.